Email from The Institute for Free Speech The Latest News from the Institute for Free Speech November 1, 2024 Click here to subscribe to the Daily Media Update. This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected]. In the News Cowboy State Daily: Judge: Sheridan School Board Violated Man's Speech Rights During Mask Debate By Clair McFarland .....Sheridan County School District No. 2 board leadership unconstitutionally restricted a local man’s speech rights, a federal judge ruled this month. U.S. District Court Judge Alan B. Johnson permanently blocked school board officials from using the board’s “personnel policy” to keep public speakers at school board meetings from referring to individual staffers by name. Doing so was unconstitutional, the judge ruled Friday. New Hampshire Union Leader: Officer dismissed from 'pink wristband' protest lawsuit against Bow schools By Paul Feely ....."We have dismissed the police officer from the lawsuit because the video showed that it was Bow school district officials who were calling the shots," said Endel Kolde, an attorney with the Institute for Free Speech. "He was just following their instructions." In the school district's answer to the plaintiffs' complaint, the district "demands a jury trial on all claims so triable." The lawsuit alleges that the defendants violated the plaintiffs' First Amendment rights by banning them from school grounds and events for wearing pink wristbands with "XX" symbols — a nod to the female chromosome structure — as a form of silent protest during a Bow High School girls soccer game against Plymouth on Sept. 17... Kolde said in an email that since he and his clients filed their original complaint they obtained new evidence, including the Bow School District defendants' declarations filed in court and the police officer's bodycam video. "Those showed that Bow officials were not just offended by the pink wristbands, but by the fact that our clients, especially Kyle Fellers, opposed their censorship and criticized the officials on the sidelines," Kolde wrote. "Also, in her declaration, Marcy Kelley admitted that she made Kyle Fellers's no-trespass longer because he talked back to them, which, in our view, he is legally entitled to do." Link via Yahoo People United for Privacy: Harris Has a Huge Lead Over Trump in “Dark Money.” Should Anyone Care? By Luke Wachob .....Sludge’s analysis is also underinclusive because it does not include things like direct spending on independent expenditures by nonprofits that do not disclose their donors. This is the more traditional form of “dark money” that groups like the Institute for Free Speech have studied over the years. These numbers are not easy to pin down during an election cycle, but according to OpenSecrets, the entire universe of 501(c)(4) social welfare organizations, 501(c)(5) labor unions, and 501(c)(6) trade associations have spent a grand total of ~$50 million on independent expenditures in the 2024 campaign. (Further illustrating the subjectivity of “dark money” statistics, Sludge chose not to count labor unions as “dark money” groups at all.) New from the Institute for Free Speech Free Speech Arguments – Can the Government Force Drug Companies to Say that Government-Set Prices Are “Fair?” (Bristol Myers Squibb Co v. Secretary United States Department of HHS) .....Bristol Myers Squibb Co. v. Secretary United States Department of HHS, consolidated under AstraZeneca Pharmaceuticals LP et al v. Secretary United States Department of HHS, argued before Circuit Judges Thomas M. Hardiman, Peter J. Phipps, and Arianna J. Freeman in the U.S. Court of Appeals for the Third Circuit on October 30, 2024. First Amendment question argued by Kevin F. King (on behalf of Bristol Myers Squibb Co., et al.) and Catherine M. Padhi (on behalf of the government). Note: the court separated the various constitutional issues from the consolidated cases into distinct portions of the oral arguments. What follows, both in terms of content and audio, relates specifically to the First Amendment question, which is the second of the three issues listed below. The other portions of the oral argument are not included in this podcast. Supreme Court SCOTUSblog: Justices schedule major First Amendment case for January By Amy Howe .....The court on Thursday released the calendar for the January argument session, which will feature nine arguments over five days. In Free Speech Coalition v. Paxton, the justices will consider a challenge to a Texas law that requires websites to verify the age of their users if at least one-third of their content is “harmful to minors,” such as pornography. The U.S. Court of Appeals for the 5th Circuit upheld the law, rejecting an argument that it violated the First Amendment by imposing a burden on adults’ access to that content. When the justices hear arguments on Jan. 15, they will focus on what test courts should use to determine whether the law is constitutional. The lower court used a test known as “rational basis” review, which looks at whether the law is rationally related to a legitimate government interest. But the challengers argue that the 5th Circuit should have used a more demanding test, known as strict scrutiny, instead. The Courts Wall Street Journal: Court Ruling Threatens to Curb Billions in Political ‘Dark Money’ By Richard Rubin and Maggie Severns .....A federal appeals court narrowed the tax rule that has let conservative and liberal groups pour billions of dollars into political campaigns without disclosing their donors, and the case could restrict the flow of so-called dark money into politics. The unanimous opinion from a three-judge panel of the 5th U.S. Circuit Court of Appeals came this week in a healthcare case that didn’t directly address politically active organizations. But the decision—from a conservative court—sets a tighter legal standard for tax-exempt status that the advocates for political donor transparency have long sought. The court said groups can’t qualify for tax exemption under Section 501(c)(4) of the tax code if they have a substantial nonexempt purpose. That is a much stricter standard than the one in Internal Revenue Service regulations, which say groups only need a primary purpose that qualifies for the exemption. That has been interpreted to allow tax exemptions for groups that spend 51% of their money on lobbying or other clearly allowed activities—and 49% on politics. “The people who are making the case that they can do up to 49%, do they have a leg to stand on? Their leg got a lot weaker,” said Phil Hackney, a University of Pittsburgh tax law professor. The path ahead is murky. This case could still get appealed, and other cases could get decided that expand nonprofits’ ability to engage in politics. The IRS, which declined to comment, must decide how to enforce the law as groups get audited or seek tax-exempt status. For now, the opinion applies only in Louisiana, Mississippi and Texas. Congress Fox News: Jim Jordan says YouTube 'censored' Joe Rogan interview with Trump By Elizabeth Elkind .....House Judiciary Chairman Jim Jordan, R-Ohio, is accusing YouTube of potentially repressing former President Trump’s interview with podcast host Joe Rogan. In a letter (embedded) to Alphabet CEO Sundar Pitchai sent late Wednesday, Jordan said the tech giant’s subsidiary "appears to have censored the video of Joe Rogan’s recent interview with President Donald Trump." "We write to seek an immediate briefing on (1) YouTube’s decision to censor Joe Rogan’s interview with President Trump; and (2) Google Search’s elevation of material critical of the interview," Jordan wrote. Free Expression New York Times: PEN America Leader to Leave Embattled Organization By Jennifer Schuessler .....Suzanne Nossel, the chief executive of the free expression group PEN America, is leaving the organization, six months after escalating criticism of the organization’s response to the war in Gaza led to the cancellation of its literary awards and annual literary festival. Nossel will become the president and chief executive of Freedom House, a nonprofit organization based in Washington that promotes democracy and human rights around the world. PEN America announced that it has elevated two current senior members of its leadership team, Summer Lopez and Clarisse Rosaz Shariyf, to serve as interim co-chief executives, effective immediately, with a national search for a permanent leader to follow. The Eternally Radical Idea: Mary Anne Franks, free speech, & how power rationalizes its need for more By Greg Lukianoff .....Young people are being miseducated about the history of free speech and the First Amendment. The way I explain it now, when I speak to both high school and college students alike, is that they’re being taught that First Amendment and free speech protections primarily benefit the “three B’s”: the Bully, the Bigot, and the Robber-Baron (rich folk). While a universal interpretation of human rights does protect the three B’s, they don’t need special protection. And historically speaking, they never have. The rich and powerful have always tended to do just fine because they are, well, rich and powerful. Indeed, the story of representative government is often monarchs going to the wealthy and powerful to ask for money, and the wealthy and powerful asking for greater say in government in return. In a democracy, the majority doesn’t need special protection for freedom of speech because their power is protected by the majority vote. The bully and the bigot easily get their way if they have the votes. NBC News: When does free speech cross the line into breaking U.S. anti-terrorism laws? By Simone Weichselbaum and Chloe Atkins .....Petrowski argued that Kates’ advocacy for terrorist groups, coupled with her participation in webinars with members of Hamas, Hezbollah and Palestine Islamic Jihad, may have violated a U.S. law that bans working under the direction or coordination of U.S.-designated terrorist organizations while providing material support. Civil rights attorneys and free speech advocates argue that the Constitution allows people to advocate for hate groups, including terrorist organizations. David Goldberger, the former legal director of the American Civil Liberties Union who defended American Nazis in court when they petitioned to march through a Jewish community in Skokie, Illinois, in 1977, argued that the First Amendment protected Kates’ participation in the webinar... Goldberger said Kates’ online appearance with members of Hamas and Hezbollah doesn’t mean the terrorist organizations are also helping coordinate Samidoun’s protests and teach-ins —which would violate federal anti-terrorism laws. “What is the direct coordination? And to do what act?” he asked. “As far as I’m concerned, this is legitimate political advocacy, unpleasant as it may be.” The Media Gem State Chronicle: Media Driven Harassment By Brian Almon .....The popular conception of journalism is that of brave reporters doggedly searching for the truth, no matter the risks, no matter the powerful interests that might oppose them. The hagiography of journalism as a profession, as exhibited in films such as All the President’s Men, teaches Americans that journalists are bona fide heroes. Yet reporters like Andrew Kaczynski are all too common today. Rather than using his time and energy to go after the powerful, he went after a private citizen for a silly video. Consider also the case of Chaya Raichik, who operated the anonymous Twitter account LibsOfTikTok which simply reposted videos which were already publicly published by leftists. Taylor Lorenz, then working for the Washington Post, tracked down Raichik and published her name and information. This practice, known as “doxxing,” has become a tool in the arsenal of left wing journalists who aim to stifle free speech or stop the exposure of leftist goals. Invasive journalism of the sort that was once reserved for the powerful is now deployed against private citizens whose only crime was publicly speaking their minds. Many journalists seem to act as the enforcement arm of the government or of one political party rather than independent watchdogs of government. Independent Groups Politico: Dem-linked super PAC boosts third-party candidate in Pennsylvania Senate race By Ally Mutnick .....A group with ties to Democrats is trying to peel crucial votes away from Republican Dave McCormick by boosting a third-party candidate in the Pennsylvania Senate race. Defend Our Constitution has spent at least $370,000 to run a TV ad calling Constitution Party candidate Marty Selker "the choice for true conservatives" and bashing McCormick for making "a fortune investing in building the Chinese military." The 30-second spot is running on Fox News Channel in Pennsylvania, according to the tracking firm AdImpact, and is clearly aimed at conservative-leaning voters. Defend Our Constitution did not file with the Federal Election Commission until late September. It used a Democratic media firm, Old Town Media, to purchase air time, and its filings show that it has paid Public Policy Polling for polling and Wavelength Strategies for ads — both Democratic-aligned firms. Candidates and Campaigns Time: AI’s Underwhelming Impact On the 2024 Elections By Andrew R. Chow .....Early this year, watchdogs and technologists warned that artificial intelligence would sow chaos into the 2024 U.S. elections, spreading misinformation via deepfakes and personalized political advertising campaigns. Those fears spread to the public: More than half of U.S. adults are “extremely or very concerned” about AI’s negative impacts on the election, according to a recent Pew poll. Yet with the election one week away, fears of the election being derailed or defined by AI now appear to have been overblown. Political deepfakes have been shared across social media, but have been just a small part of larger misinformation campaigns. The U.S. Intelligence Community wrote in September that while foreign actors like Russia were using generative AI to “improve and accelerate” attempts to influence voters, the tools did not “revolutionize such operations.” ... Many campaigns are short-staffed, have tight budgets and are short on time. AI, the theory goes, could replace some of the low-level work typically done by interns. A spokesperson for the Democratic National Committee told TIME that members of the organization were using generative AI to make their work “more efficient while maintaining strong safeguards”—including to help officials draft fundraising emails, write code, and spot unusual patterns of voter removals in public data records. The States New York Times: Are Ballot Selfies Legal? That Depends on Where You Live. By Callie Holtermann .....Ballot selfies are against the law in 13 states, according to a recent report from the nonprofit organization Lawyers for Good Government. Among the states with a ban is New York, whose attorney general, Letitia James, reminded voters last week to keep their marked ballots to themselves. Seven states allow selfies with mail-in ballots, but not at polling locations, and nine have laws that are unclear, the report said... The American Civil Liberties Union of New Hampshire challenged a state law banning ballot selfies in 2014, claiming that it restricted free speech. Election officials there countered that the law was still necessary to prevent voter intimidation. The New Hampshire ban was officially overturned in 2016. States including Colorado and California later amended their laws to be friendlier to ballot selfies. In other states, including New York, bans were upheld. Read an article you think we would be interested in? Send it to Tiffany Donnelly at [email protected]. For email filters, the subject of this email will always begin with "Institute for Free Speech Media Update." 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